Archive for month: November, 2008

When the Rating Board denies a veteran’s claim, the veteran has the option of having his appeal handled in the “traditional” fashion or by the Decision Review Officer (DRO).

Under the traditional appeal procedure, an employee from the Rating Board reviews a denial and makes a determination whether the claim should continued to be denied.

Under the DRO appeal, a senior rating officer at the Regional Office, reviews the decision. In that review, the DRO is required to make a decision without any deference to the first decision by the Rating Board. In other words, the DRO reviews the evidence and makes a decision without considering the Rating Board denial.

In our practice we normally request the DRO process. It normally gives our veterans an experienced rating officer who has the ability to set aside a bad decision made by the Rating Board.

Yes, a veteran can receive both. However, this applies only to SSD benefits and VA compensation benefits. It does not apply to SSI or VA pension benefits. These benefits are income and asset tested and cannot generally be combined with other benefits.

The VA ratings schedule is designed to approximate the loss of wage earning capacity of an injured veteran. However, some veterans, with catastrophic injuries, are entitled to benefits above the 100% schedular rating. These are called Special Monthly Compensation (SMC) benefits.

The ratings tables discuss the entitlement to SMC. It is based on the need for extraordinary care and the loss of certain organs. This is a complicated area of veterans law and, if you have questions about it, you should have an attorney review your C File to make sure you are receiving appropriate SMC benefits.

Generally, the VA assigns an date as the date on which the granted claim was filed. So, if a veteran has been filing the same claim for twenty years, he will normally only get an effective date back to the date the successful claim was filed.

There are some important exceptions to this rule. The first involves CUE claims. These claims are explained in another post. CUE claims are difficult to prove and are very strictly interpreted by the court.

Another exception to the rule involves a claim which is granted based on newly discovered service department records. If claim for service connection has been denied for years and is then granted when new unit records are discovered, the regulations require that the VA consider an effective date back to the time whent he first claim was filed.

Another important exception involves claims for increase. A claim for increase normally results in an effective date back to the date of the filing of the request for an increase. However, under the regulations, the VA can grant benefits up to a year before the filing if the increased condition existed prior to the filing.

This question becomes important if a veteran has PTSD. The VA is required to accept a combat veteran’s word about stressors in combat. It is not required to accept a non-combat veteran’s word about stressors.

There are a number of ways to prove combat. The VA will readily accept certain medical, e.g. the CIB, the Purple Heart, etc, as proof of combat. Buddy statements can also be used as proof of combat.

The more difficult cases involve soldiers who did not have a combat MOS and who were involved in combat that was not recorded by their units. Normally, with this type of case, we will retain a military historian to review the unit records of all of the units around the veteran’s assigned unit to see what was happening in the area. We have found this to be extremely helpful in proving these types of cases.

CUE stands for clear and unmistakeable evidence. It is also called a Motion for Revision.

CUE claims are filed against VA decisions that were made years ago. Basically, the claim is that the rating decision was wrong on its face and should be set aside. If the claim is successful, benefits are paid by the VA all the way back to when the denied claim was filed.

The proof of a CUE claim is not easy. It is not enough to show that the VA decision was wrong. The veteran is required to show that the regulations and facts which were in the C File at the time of the prior decision could lead only to one conclusion and the VA got the wrong conclusion. The court is very strict about CUE claims and, while these claims do get granted, they are not granted very often.

TDIU stands for Total Disability based on Individual Unemployability. It is also called IU and Unemployability.

TDIU is based on a regulation that allows veterans who have less than a 100% schedular rating to receive 100% disability pay where the veteran’s service connected disability causes a total inability to work.

In order to qualify for this rating, the veteran must have one service connected of 70% or a combination of ratings totalling 60% with one of the included ratings being at least 40%. Once these rating qualifications are met, the veteran is entitled to the benefit if he or she can show that the service connected disability has caused a total inability to work.

If the veteran has service connection disability that doesn’t meet the schedular rating noted above but the disability prevents the veteran from working then the veteran can still file a claim for IU. The VA rates some diseases as total at less than 100%. For example, the max rating for migraines is 50%. If a veteran had migraines that were so debilitating that they prevented the veteran from working then a request for IU would be appropriate.

This regulation is one that we use all of the time for our seriously injured veterans. It allows a disabled veteran to obtain full benefits even though the scheduled rating would not allow it.

The C File is the claims file. It contains every piece of paper which the VA has considered on a veteran’s claims since the time he got out of service. It should contain the 201 (Personnel) file; the service medical records and all medical records filed in support of the veterans claim. It also contains all of the decisions made by the VA on all claims that have been filed.

It is our policy that we will review our client’s clients entire C File during our representation of the veteran. This gives us a historical perspective on this case and tells us whether mistakes have been made in the past which would allow our veterans to collect past due benefits.

The C File is not easy to get. We are finding that it takes the Regional Office at least 6 months to provide a copy of the file. We are required to file a Freedom of Information Act request and then, in most cases, file an appeal to get this important piece of evidence.

The VA is notoriously one of the slowest agencies in the Federal Government. Normally, on a routine issue, we are expecting the first decision from the Rating Board in 4 months. We are being told that the decision makers in the St. Petersburg Regional office are working on a 365 turn around to make a decision on an appealed claim.

There is no good answer to this question. Claims that have substantial value are being reviewed more carefully and are taking more time. There is nothing that a veteran’s advocate or attorney can do to hasten the VA claims process. The only thing that can be done is to make sure that the VA has all of the required information when they are ready to make the claim.

Testimonials

Dear Carol, …on behalf of my son, my wife, and myself…THANK YOU so wholeheartedly. To you and your friendly staff in handling our not so easy Social Security and Veteran Administration claims. We have been greatly satisfied and rewarded with your…

Diego A.

I know that my husband got his 100% because of the wonderful persistence of Carol and all she did and for her big and wonderful loving heart for these forgotten veterans. There are really no words to express our gratitude for your firm, especially Ca…

Larry and Peggy T.

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Omeaterance Mewborn

My name is Vickie Clark. My husband, Robert Clark, was diagnosed with liver cancer back in March 2009. He was a Vietnam veteran. I had been telling my husband back in 1992 to apply for VA benefits but he would not do anything. Finally, when he got di…

Vickie C.

Mrs. Ponton words cannot describe what I feel this moment!! I’ve waited TWENTY TWO years for this!!!

Ron C.

Atty. Hill, I want to let you know how much I really appreciate your diligence and patience concerning this matter. It was very stressful and frustrating for me and I did not want it to go on any longer than necessary. Without your assistance this ma…

John B.

Mary, Thank you so much. You are the best and I will tell everyone how great that you and Hill and Ponton have treated me as we try and move forward with our life. Thank you so much and God Bless you.

Michael M.

Mary, on behalf of myself & my family I would like to thank you and your firm for assisting me through the disability application approval process. If I know anyone in a similar situation I will gladly recommend your firm & especially you.

Joe D.

Please let me express my sincere gratitude and appreciation for all the hard work you and your staff provided me during a difficult time in my life. I want you to know that you have inspired me with confidence and understanding of my situation. Also,…

Michael L.

I would also like to tell you how happy your firm has made me. Mary handled my claim with care and respect! She listened to my whining and crying; even returned my calls within a day.